Articles Posted in Car Accident

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Driving is a dangerous thing with out distractions. When drugs and alcohol are involved it becomes a life and death situation. Never hesitate to contact a personal injury lawyer if you think you have been in an accident where the other driver may have been impaired by drugs or alcohol. According to the Texas Department of Transportation (TXDOT) car accidents are not decreasing, especially accidents involving alcohol impairment. In 2009, just in Texas, there were a total of 12,508 car accidents involving DWIs, 867 of those accidents were fatal. When looking at the map of regions where most DWI accidents occur, we noticed the majority of them have happened in the Dallas/Fort Worth area. (View map)

What is Texas doing in order to prevent accidents due to the impairment of alcohol? Below is the list of current possible consequences for a driver’s first offense:

• Up to $2,000 in fines
• Jail time of 3 to 180 days
• Fee to retain driver’s license – $1,000 to $2,000 per year
• Possible probation for 1 year
• Suspended license for up to 1 year
In 2005 a 17-year-old El Paso man, Felix Padilla, was convicted of drunken vehicular homicide after rolling his car in Las Cruces, New Mexico. The accident injured one passenger and tragically killed another, both high school students. Padilla was sentenced to probation but according to court records his probation was never successfully completed. On July 22 Padilla was pulled over again in Las Cruces for speeding. After several failed sobriety tests Padilla was taken into custody. While searching his car, officers found cocaine, a bag of marijuana, two marijuana pipes and a marijuana grinder. According to the article, “New Mexico statute does not allow for juvenile adjudications to be used to enhance subsequent drunken driving convictions, nor do youthful offender statutes allow juveniles to be charged as adults, both laws that need to be toughened said District Attorney Amy Orlando.”

State records show that in between Padilla’s two arrests he had also been convicted of assault causing bodily injury to a family member, driving with a suspended license and driving 16 to 20 miles over the speed limit in 2008. On August 18 Felix Padilla was indicted on the current charges, felony cocaine possession, aggravated drunken driving, no driver’s license and possession of marijuana. Why did it take at least four arrests and six years for Padilla to serve time? Do courts need to reconsider offenses as a juvenile and pay closer attention before another accident occurs? (read the full article)

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In 2006, large commercial trucks were involved in nearly 17,000 accidents in Texas. Due to the tremendous weight and force of big rig trucks, the fatality rate in those accidents far exceeded the fatality rate in accidents involving only passenger vehicles. Trucking companies across Texas are abiding to new regulations in hopes to prevent more accidents.

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“These regulations only apply to property carriers and commercial motor vehicle drivers. Passenger carriers and their drivers will continue operating under the pre-2003 rules while fatigue issues specific to the passenger carrier industry are assessed.”(Federal Motor Carrier Safety Administration (FMCSA))

To see all regulations and read more about Hours-of-Service policies please go to The U.S. Department of Transportation – Federal Motor Carrier Safety Admininstration

SIMPLY stated the new rule means:

• Drivers may drive up to 11 hours in the 14-hour on-duty window after they come on duty following 10 or more consecutive hours off duty.

• The 14-hour on-duty window may not be extended with off-duty time for meal and fuel stops, etc.

• The prohibition on driving after being on duty 60 hours in 7 consecutive days, or 70 hours in 8 consecutive days, remains the same, but drivers can “restart” the 7/8 day period anytime a driver has 34 consecutive hours off duty.

• CMV drivers using the sleeper berth provision must take at least 8 consecutive hours in the sleeper berth, plus 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two.

Short-Haul Provision

Drivers of property-carrying CMVs which do not require a Commercial Driver’s License for operation and who operate within a 150 air-mile radius of their normal work reporting location:
• May drive a maximum of 11 hours after coming on duty following 10 or more consecutive hours off duty.

• Are not required to keep records-of-duty status (RODS).

• May not drive after the 14th hour after coming on duty 5 days a week or after the 16th hour after coming on duty 2 days a week.
• Employer must:

• Maintain and retain accurate time records for a period of 6 months showing the time the duty period began, ended, and total hours on duty each day in place of RODS.
Drivers who use the above-described Short-haul provision are not eligible to use 100 Air-mile provision 395.1(e) or the current 16-hour exception in 395.1 (o).

“In developing these hours-of-service regulations, the Federal Motor Carrier Safety Administration (FMCSA) systematically and extensively researched both United States and international health and fatigue studies and consulted with Federal safety and health experts. Our roads are better designed, constructed, and maintained in a nationwide network to provide greater mobility, accessibility, and safety for all highway users. Vehicles have been dramatically improved in terms of design, construction, safety, comfort, efficiency, emissions, technology, and ergonomics. These factors, combined with years of driver fatigue and sleep disorder research, led to a revision of the hours-of-service regulations for drivers.” (FMCSA)

Large truck cases present complex issues, and often require an expert to review the circumstances of the accident. To litigate successfully against a truck driver or trucking company, the plaintiff must prove that the driver or company acted negligently. That is, you must show that the driver or company failed to exercise reasonable care:

• the truck driver was impaired by fatigue, drugs, or alcohol;
• the truck driver or the trucking company failed to maintain the truck in a safe operating condition;
• the truck driver or trucking company violated federal trucking safety rules or regulations
• the truck driver or the trucking company overloaded or improperly loaded the truck
• the truck driver operated the truck in an unsafe manner.

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On July 1, 2011,the Supreme Court of Texas modified long existing common law known as the collateral source rule in such a manner as to inhibit the victims of car wrecks, truck wrecks, defective products and bad drugs from getting a fair recovery from a jury in Texas. In the case of Haygood v. Escobedo, Tex. Sup. Ct. No. 09-0377, July 1, 2011, the Court concluded that health care providers make it a practice to set their full charges as high as possible in order to attempt to influence private insurers and medicare to increase reimbursement rates. As a result, the Court concluded that juries should ignore these charges by health care providers in determining the award of reasonable and necessary medical expenses and only consider what the health insurance carrier or Medicare actually paid under its reimbursement agreement. While innocuous on its face, the Court well knows that the amount of medical expenses presented to the jury during trial impacts the award of other elements of damages such as pain and suffering. By refusing to allow the jury to consider the full charge of the health insurance carrier in determining damages and only allowing the amount paid under a reimbursement agreement with the private health insurance carrier or Medicare, it can be concluded that jury verdicts in cases where the victim of personal injury has private insurance will be smaller.

The collateral source rule was intended to prevent the wrongdoer to benefit from a person having insurance independently purchased from a third party. In my opinion, what is wrong with this opinion is that a person who did not purchase private health insurance will continue to be able to submit the full amount of the bill charged by the health insurance provider and as a result will in all probability have disparately higher jury awards when compared to the victim with the good judgment to purchase such coverage. As a result, in my opinion, the Haygood opinion accomplishes exactly what the collateral source rule was designed to prevent. It has the effect, whether unintended or not, to influence jury verdicts against wrongdoers lower in cases where the personal injury plaintiff did the prudent thing by purchasing health insurance.

Mike McGartland